VSC On H1B Cap And Third-Party Client Sites

The Vermont Service Center (VSC)
recently addressed questions from the American Immigration Lawyers
Association (AILA) on a variety of topics. The issues relating to H1B
cases are summarized here for the benefit of MurthyDotCom and
MurthyBulletin readers. Topics include the cap count as well as the
important matter of required evidence for H1B workers placed at
third-party worksites.

H1B Cap
Progress

The VSC advised on August 20, 2009 that
approximately 34,800 cap-subject H1B cases had been processed for FY2010.
At that time, an additional 4,000 cases were awaiting responses to
requests for evidence (RFEs), as well as there being 5,000 more pending
cases. VSC reports that 1,200 to 1,600 cap-subject cases are being
received there per month.

The ongoing H1B cap count
continues to be available on MurthyDotCom. The cap count has had
irregular movement, with the numbers decreasing in some of the counts.
While the VSC is reporting receipt of 1,200-1,600 cap-subject cases per
month, it is noteworthy that the count is moving far more slowly. The VSC
explained that the cap count is maintained by USCIS Headquarters. The
changes in the count can be the result of adjustments to return H1B
denials to the total, as well as multiple filings for the same beneficiary
by an employer. Multiple filings result in denials of pending cases, or
revocations of approvals.

Consultant Issues : Third-Party
Worksites

H1B cases filed by IT consultants are
facing strict scrutiny. One important issue is the need for proof of the
specific work to be performed at the third-party worksite. The U.S.
Citizenship and Immigration Services (USCIS) will not accept a statement
regarding the duties from the petitioning consulting company alone. The
VSC confirmed that a letter from the end client is acceptable as proof of
the specific assignment. This may be submitted in lieu of the contract for
the work (which is often the contract between a mid-vendor and the end
client). According to the VSC, it no long requests these contracts in its
RFEs.

IT consulting companies must be aware of the need for proof
from the end client, and this should be considered prior to filing the
case. It should no longer come as a surprise request in an RFE. The need
for this letter, as proof of the nature of the position, should be
discussed with the end client in advance. Issuance of such letters is
becoming a routine practice for companies wishing to engage the services
of IT consultants. Companies that may have been reluctant to issue such
letters at one time have found it necessary to revise their policies, if
they require IT consultants.

Conclusion

The change in VSC
policy regarding end clients is helpful. Contracts often contain
confidential information. They are also often general in nature and may
not carry the specific information needed by the USCIS to determine the
job duties to be performed under the H1B petition. The end client letter
can provide this information in sufficient detail.